Citation Nr: 0608206
Decision Date: 03/22/06 Archive Date: 04/04/06
DOCKET NO. 03-28 822A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an increased disability evaluation for
service-connected right knee disorder, currently evaluated at
ten (10) percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Linda E. Mosakowski, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1971 to January
1972. The matter comes to the Board of Veterans' Appeals
(Board) from a rating decision dated November 2002 from the
Department of Veterans Affairs (VA) Regional Office in North
Little Rock, Arkansas.
FINDINGS OF FACT
1. The veteran's service-connected right knee disability is
manifested primarily by complaints of a slight limp,
inability to run or squat, occasional slight swelling, pain,
instability, and on rare occasion, buckling without making
the veteran fall.
2. Objective evidence based upon orthopedic examination and
diagnostic studies of the right knee indicates the knee is
stable and tender on palpation, osteoarthritis appears in the
right knee, and there is full range of motion with limitation
of motion due to onset of pain at 100 degrees for flexion and
10 degrees for extension; there is no subluxation, no
significant effusion or dislocated semilunar cartilage, no
locking, no ankylosis, no impairment of tibia or fibula, and
no genu recurvatum.
CONCLUSIONS OF LAW
1. Criteria have been met for a separate rating, to 10
percent, and no higher, for arthritis which is established by
X-rays and which impairs extension to the extent of 10
degrees under Diagnostic Codes 5003 and 5261. 38 U.S.C.A.
§ 1155 (2005); 38 C.F.R. Part 4, §§ 3.321, 4.1, 4.2, 4.3,
4.4, 4.14, 4.25, and 4.45, and Diagnostic Codes 5003, 5256-
5263 (2005).
2. Criteria have not been met for an increased rating for
symptomatic residuals of the removal of semilunar cartilage
of the right knee under Diagnostic Code 5259. 38 U.S.C.A.
§ 1155; 38 C.F.R. Part 4, §§ 3.321, 4.1, 4.2, 4.3, 4.4, 4.14,
4.25, and 4.45, and Diagnostic Codes 5003, 5256-5263 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A June 1972 rating decision granted service connection and
assigned a 10 percent rating using Diagnostic Code 5257,
effective from January 1972, for probable incomplete tear of
the posterior horn of the medial meniscus, right knee. In
December 1972, the RO assigned a 100 percent rating for the
veteran's post-operative recovery period following medial
meniscus surgery in October 1972, and a 10 percent rating
from February 1973 using Diagnostic Code 5259 for symptomatic
removal of semilunar cartilage. In March 1977, the
disability rating was decreased to a noncompensable rating,
which this Board affirmed. In 2001, the veteran filed a
claim to increase the disability rating and an increase to 10
percent under Diagnostic Code 5257 was granted effective
March 23, 2001. In September 2002, the veteran sought an
increased rating greater than 10 percent, which the RO denied
in a November 2002 rating decision. This appeal arises from
the veteran's disagreement with the continuation of the
10 percent rating.
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (38 C.F.R., Part 4),
which represent the average impairment in earning capacity
resulting from injuries incurred in military service and the
residual conditions in civil occupations. 38 U.S.C.A. §
1155; 38 C.F.R. §§ 3.321(a), 4.1.
Generally, an evaluation of the extent of impairment requires
consideration of the whole recorded history (38 C.F.R.
§§ 4.1, 4.2), but when, as here, service connection has been
in effect for many years, the primary concern for the Board
is the current level of disability. See Francisco v. Brown,
7 Vet. App. 55, 58 (1994).
Several diagnostic codes can be applicable in a rating
evaluation for knee disabilities. See 38 C.F.R. § 4.71,
Diagnostic Codes 5256 through 5263. Except as otherwise
provided in the rating schedule, all disabilities, including
those arising from a single disease entity, are to be rated
separately, and then all the ratings are to be combined under
the rules set forth in 38 C.F.R. § 4.25. Esteban v. Brown, 6
Vet. App. 259, 261 (1994). See also 38 C.F.R. §§ 4.25(b)
(separate disabilities are to be evaluated separately), 4.14
(evaluation of the same disability under various diagnoses is
to be avoided under the "rule against pyramiding").
The RO previously rated the veteran's right knee disability
using Diagnostic Code 5259 (symptoms from removal of
semilunar cartilage), but changed the Diagnostic Code to 5257
(other impairment of knee, recurrent subluxation or lateral
instability) in 2001. Diagnostic Code 5259 applies when, as
here, surgery has been performed to remove the medial
meniscus but there are residuals from that cartilage removal
that impair the function of the knee. The veteran has a
slight limp, cannot run or squat, experiences slight swelling
weekly, and on rare occasions, his knee buckles or gives out
without making him fall. In April 2003 and in October 2002,
VA examiners diagnosed the veteran with post-operative medial
meniscectomy residuals. The maximum rating for this
diagnostic code is 10 percent, which has been granted to the
veteran.
Diagnostic Code 5257, in contrast, governs other impairment
of the knee, recurrent subluxation or lateral instability.
In the only medical notes to specifically address it, the VA
examiner observed in October 2002 that there was no
subluxation. But there is consistency in the medical records
of October 2002, September 2003, and August 2004 that the
knee is stable. This evidence would not support a
compensable rating under Diagnostic Code 5257,which assigned
a 10 percent rating for slight recurrent subluxation or
lateral instability. The Board concludes, therefore, that
the current 10 percent disability evaluation is more
appropriately assigned using Diagnostic Code 5259, which the
RO has used previously, rather than Diagnostic code 5257.
An increased, or separate compensable, rating may be possible
by examining other Diagnostic Codes. Diagnostic Codes 5256
(ankylosis), 5262 (tibia and fibula, impairment of), and 5263
(genu recurvatum) are not applicable because the veteran has
not complained of any of the symptoms associated with these
diagnoses and the medical evidence is silent concerning the
consolidation of his knee joint, damage to his tibia or
fibula bones, and any hyperextension of the knee.
Diagnostic Code 5258 (dislocated semilunar cartilage with
frequent episodes of "locking," pain, and effusion into the
joint) is not applicable here. Although notes from one
examination in October 2002 indicate some effusion, the June
2001 and October 2002 radiographic reports state that no
joint effusion is seen, and later examinations in April 2003
and September 2003 showed no effusion. No medical evidence
indicates dislocated semilunar cartilage. Moreover, the
veteran has not complained of his knee locking, so this
diagnostic code does not support an increased rating.
Diagnostic Codes 5260 (limitation of flexion) and 5261
(limitation of extension) govern ratings for the limitation
of a leg's range of motion. Flexion of the leg was reported
as 135 degrees in April 2001, 120 degrees in October 2002,
and 100 degrees in April 2003. Since compensable ratings for
flexion don't begin until the leg's range of motion has
declined to a 45 degree limitation, additional compensation
based on flexion cannot be granted. See Diagnostic Code 5260
(ratings of 0, 10, 20, and 30 percent for limitations of 60,
45, 30, and 15 degrees, respectively).
As for extension, at the veteran's August 2004 and October
2002 examinations, his treating physician found that he had
full range of motion. Since the right leg extension was not
limited from the service-connected knee injury, no increased
rating is warranted under Diagnostic Code 5261 (ratings of 0,
10, 20, 30, 40, and 50 percent for extension limitations of
5, 10, 15, 20, 30, and 45 degrees, respectively).
Although he did not measure the point during extension at
which the veteran's pain began, the veteran's treating
physician noted in August 2004 that the veteran experienced
pain with full range of motion. See also notes from
examination of October 2002 (range of motion limited due to
pain). In April 2003, the VA examiner determined that the
veteran's right leg extension at the onset of pain was
limited to 10 degrees. Under Diagnostic Code 5003
(degenerative arthritis established by X-ray findings), when
the limitation of motion for the specific joint is non-
compensable under the schedules for the musculoskeletal
system, and X-rays establish the existence of arthritis, a
rating of 10 percent can be applied for each major joint
affected by limitation of motion, to be combined with, not
added to, other compensable ratings. A knee is considered a
major joint for purposes of applying ratings for arthritis.
38 C.F.R. § 4.45(f).
There is conflicting evidence about the existence of
arthritis. The VA took X-rays in October of 2002 and the VA
radiographic report stated that the joint spaces were
normally maintained and no bony abnormalities were seen. The
VA examiner concluded that arthritis was not found. The
veteran's treating physician stated that the X-ray showed
medial joint space narrowing consistent with post
meniscectomy osteoarthritis, medial compartment. Another VA
examination was scheduled and an MRI was given in April 2003.
The MRI radiographic report does not address arthritis. The
VA examiner in May 2003 stated that the MRI did not show
degenerative joint disease (arthritis), but the file contains
no explanation of his rationale for that conclusion. The
veteran's treating physician, on the other hand, explained
that X-rays showed a significant narrowing of the medial
joint space and subchondral sclerosis of the medial tibial
plateau, which confirmed medial compartment osteoarthritis
due to trauma and previous meniscectomy. He also explained
that the April 2003 MRI revealed subchondral tibial edema of
the medial tibial condyle consistent with osteoarthritis.
Given the detailed analysis included in the treating
physician's records and applying the doctrine of reasonable
doubt under 38 C.F.R. § 4.3, the Board finds the existence of
arthritis in the veteran's right knee.
Since, as discussed above, under Diagnostic Code 5261 there
is limitation of motion in his right knee due to onset of
pain and arthritis exists in that one joint, under Diagnostic
Code 5003, the veteran qualifies for a rating of 10 percent
for arthritis to be combined with, not added to, his 10
percent rating for residuals from the removal of semilunar
cartilage under Diagnostic Code 5259. Ratings are combined
rather than merely added, in order to consider the efficiency
of the individual as affected by multiple disabling
conditions. See 38 C.F.R. § 4.25(a). Here, both ratings are
10 percent, which yield a combined rating of 19. See Table
I, 38 C.F.R. § 4.25 (title note). When the combined rating
is converted to the nearest number divisible by 10
(as required by 38 C.F.R. § 4.25(a)), the veteran qualifies
for a disability rating of 20 percent.
Relying on 38 C.F.R. sections 4.40 and 4.45 and DeLuca v.
Brown, 8 Vet. App. 202 (1995), the veteran's representative
urges the Board to consider the veteran's functional loss due
to fatigability, incoordination, endurance, weakness, and
pain. The record contains neither complaints by the veteran
nor medical evidence regarding fatigability, coordination, or
endurance. The only evidence on the issue of weakness is the
notation by the veteran's treating physician in August 2004
that the veteran denies numbness, tingling, or weakness.
The veteran has consistently complained of pain in his right
knee. From June 2001 to October 2002, he described
intermittent pain but was not taking medication regularly for
it. In April 2003, he complained of constant pain and stated
that he was taking 600 mg. of Ibuprofen twice daily. In
August 2004, he indicated that the pain was worse with
weight-bearing and he was given a prescription for ketoprofen
for his arthritis pain. The functional impairment due to
pain was objectively measured under Diagnostic Code 5003,
which is intended to compensate the veteran generally for
painful motion. Examining the record for other
manifestations of pain, there is no evidence of pain
flare-ups and the veteran experiences only occasional slight
swelling. While he states that the pain is worse with
weight-bearing, it has not been so severe that it has caused
the veteran to take off time from work. Accordingly, the
increased rating of 10 percent for arthritis adequately
addresses the veteran's pain without warranting a further
increased rating under 38 C.F.R. § 4.59.
Duties To Notify And Assist
VA has certain duties to notify and to assist claimants
concerning the information and evidence needed to
substantiate a claim for VA benefits. 38 U.S.C. §§ 5103 and
5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159 and
3.326(a). VA must notify the claimant (and his or her
representative, if any) of any information and evidence not
of record: (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; (3) and that the claimant
is expected to provide, and (4) VA must request that the
claimant provide VA with any evidence in his or her
possession that pertains to the claim. 38 U.S.C. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Notice should be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112
(2004).
The RO's September 2002 letter describing the evidence needed
to support the veteran's claim was timely mailed before the
November 2002 AOJ rating decision. It notified the veteran
that the evidence necessary to substantiate his claim for an
increased rating was medical evidence showing that his
physical condition had become worse. It advised the veteran
that the most helpful evidence would be medical records that
showed the current extent of his disability. Enclosed with
the letter were forms for the veteran to identify what
medical records the veteran wanted the VA to obtain.
The September 2002 letter failed to identify what evidence
the RO would seek to provide, failed to ask the veteran to
provide all relevant evidence in his possession to the RO,
failed to identify what evidence was needed with respect to
the rating schedule for knee injury disabilities, and failed
to address the evidence needed for calculating the effective
date of any increased rating. Neither the veteran nor his
representative has raised any of these issues. As discussed
below, there is no indication that any omission in the
September 2002 letter has prevented the veteran from
providing evidence necessary to substantiate his claim and/or
affected the essential fairness of the adjudication of the
claim.
The September 2002 letter did not identify what records the
RO would seek to provide in this case because all the records
pertaining to the veteran's past medical condition had
already been associated with his claims file as a result of
his earlier claims. When the veteran filed his original
claim for service connection for a knee complaint in January
1972, the RO obtained the veteran's service medical records
and those records are still in his claims file. Similarly,
the medical evidence relating to his December 1972 claim for
an increase in his disability rating, the March 1977 rating
decision to decrease his disability rating, and his March
2001 claim to increase his disability rating are all in the
veteran's claims file. As a result, when the veteran, in
September 2002 , filed his claim for an increase in his
disability rating that is at issue in this appeal, there were
no records the RO needed to seek, and so the failure to
include a statement identifying records was harmless.
The September 2002 letter to the veteran and his
representative did not explicitly ask the veteran to provide
whatever evidence he had to the RO. It did indicate that
evidence of the current extent of the veteran's disability
was needed and that if the information was not sent to the
address identified in the letter within 30 days, a decision
would be made based solely on the evidence VA had received.
These statements together put the veteran on notice that
evidence could be submitted directly to the RO. Moreover,
the veteran presumably already knew he could submit evidence
to the RO because in an earlier claim for an increased rating
evaluation, he had done just that by supplying April 2001
treatment records directly to the RO. When the veteran
received medical treatment during the review of the AOJ
decision, he submitted those records (dated September 2003
and August 2004) directly to the RO. Finally, in a December
2004 document to the RO, the veteran indicated that he had no
other evidence that he wished to submit. The record thus
shows that omitting a specific request to forward evidence to
the RO did not prejudice the veteran.
The September 2002 letter failed to address what evidence was
needed with respect to the rating schedule for knee injury
disabilities and the effective date of any increased rating.
See Dingess v. Nicholson, Nos. 01-1917, 02-1506, 2006 WL
519755 (Ct. Vet. App. March 3, 2006) (since the degree of
disability and effective date of the disability are part of a
claim for service connection, VA has a duty to notify
claimants of the evidence needed to prove those parts of the
claim). This veteran, however, was not harmed by the RO's
omission. With the help of his representative, he has
challenged the assigned rating three times before, so the
process is not new to him. In the statement of the case sent
to the veteran in August 2003, the RO reproduced relevant
regulations regarding the general considerations of the
ratings schedules, the underlying measurement of functional
impairment, measurement of joint injuries, and the
consideration of pain. The specific ratings schedules
applied by the RO were also reproduced. Under the "Reasons
and Bases" section of the SOC, the RO identified what
evidence was lacking to qualify for an increased rating. The
veteran submitted more evidence and his rating was increased
on appeal.
VA also has a duty to assist a claimant in obtaining evidence
to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159. VA met its duty to assist the veteran by
providing two medical examinations, X-rays, and an MRI, as
well as explaining in its September 2002 letter that the RO
was willing to obtain medical records for the veteran. Since
the veteran did not request any assistance in obtaining
records, the VA fully complied with its duty to assist the
veteran.
ORDER
A separate rating, to 10 percent, and no higher, is granted
for arthritis which is established by X-rays and which
impairs extension to the extent of 10 degrees due to pain
under Diagnostic Codes 5003 and 5261.
An increased rating for symptomatic residuals of the removal
of semilunar cartilage of the right knee under Diagnostic
Code 5259 is denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs